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Licensed Unlicensed Requires Authentication Published by De Gruyter November 23, 2011

Definition of "Investment": Could a Persistent Objector to the Salini Tests be Found in ICSID Arbitral Practice?

  • Antoine Martin
From the journal Global Jurist

Abstract

With the absence of an explicit definition of the term “investment” under Article 25 of the ICSID and given the general nature of bilateral investment protection treaties (BITs) to this effect, arbitral courts have been faced with the issue of establishing the existence of “investments” while establishing their jurisdiction over several claims. While Fedax v Venezuela and Salini v Morocco provided a fixed set of criteria characteristic of the existence of an “investment,” various debates have taken place in arbitral practice as to how these shall be interpreted. Some decisions for instance considered the Salini criteria as jurisdictional requirements, but others rather relied on flexibility to limit the value of the criteria to a set of purely indicative hallmarks. This comment therefore reviews how the term “investment” has been interpreted and suggests that a persistent objector to the Salini tests might be emphasised.

Published Online: 2011-11-23

©2012 Walter de Gruyter GmbH & Co. KG, Berlin/Boston

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